from the and-this-is-why-you-fail dept

Simon alerts us to yet another story of a big company doing something that is against their own best interests, and blaming copyright for the decision. The story comes via a blog post by Kristi Dosh, who is a lawyer, who notes that she recently went to a Barnes & Noble with her boyfriend to pick up some books. There was a full display of books about Ireland (for St. Patrick's Day) and since the two are planning a trip to Ireland, they decided to pick up some books... and to take a snapshot of the display and tweet it out to friends. As they did so, however, an employee came over and told her no photography was allowed. At first, Dosh thought he was joking, but upon realizing he was serious, asked why. The employee claimed it was store policy and that it was because the books were covered by copyright.

Dosh, of course, knew that this argument was specious. She points out that B&N, since it's not the copyright holder, cannot take action. I actually don't think this argument is all that compelling, really. B&N, as a private actor, certainly has the right to agree with a copyright holder that it will block photographs of their books or to decided, just as a private store, to block photography. Still, it appears the reason is somewhat misleading, and Dosh's later calls to B&N confirmed that they consider this a copyright issue. I'm a bit surprised that Dosh doesn't mention fair use, as it seems like there's an amazingly strong argument that there's a fair use claim here that would protect her from any copyright issue.

But, really, this has nothing whatsoever to do with the legal arguments one way or the other. As happens so often in copyright issues, it's about the common sense situation, and the fact that blocking photographs in the store makes no common sense. Basically, B&N is barring attempts by people to promote the in-store display for free, and that's silly. Stopping word of mouth marketing is a bad idea. Dosh digs in:

When I was in San Francisco last fall, I tweeted about the best winery I visited, Jacuzzi Family Vineyards, and encouraged my followers to visit. It's four months later and that winery still tweets back and forth with me, which has added to my positive experience with them and caused me to continue to order wine all the way from back at my home in Atlanta.

Also while in San Francisco, I had the best meal experience of my life at Forbes Island via the recommendation of a person on Twitter who I've never met. Turns out they do absolutely no advertising, they simply exist on word of mouth and their fabulous product and service.

Last month, my boyfriend and I went to Asheville and got more good restaurant recommendations from our Twitter followers. We then proceeded to tweet pics of each and every gorgeous plate of food we had to encourage others to eat at these wonderful locations. I know of at least one follower who has already dined at one of these establishments based on our tweets.

For as long as there has been commerce, word of mouth has been a powerful advertising tool. Now instead of being able to reach the twenty-five other people in Jane’s sunday school class, you can reach potentially millions of people on Twitter.

And yet, Barnes & Noble makes sure this is not possible... because it's afraid of some nebulous, questionable "copyright" claim. Of course, part of this demonstrates the problems of basic copyright law today (even if there isn't a valid copyright claim here). It's designed for a world where nothing is shared, where people aren't promoting things for you, and where all "content" is professionally produced for "consumption" by the riffraff. But reality is more complex. We talk to each other. We share. We promote. It's what we do. It's how culture works. It's how communication works. And copyright throws a wrench into all of that, which is really unfortunate.

Not an issue for me

I go to B & N all the time. Sometimes when I see an interesting or just plain weird book I will snap a picture and post it to twitter, no one has ever said not to do that. Maybe the employees just never seen me do it therefore don't know I am doing it, or the employees just don't care cause of the fact that you can get a picture of a book cover online and post it. To me this story is just ridiculous.

Its possible that B&N sells prominent display spaces to vendors and/or has to pay for such displays themselves since it could, ostensibly, drive traffic to their stores. I worked for Best Buy for a number of years and this was generally the case with their endcaps. This would be a reason for such a policy.

No photo policy could just covers too much

If they have a no photo policy to stop people taking photos of every page of a book that is a valid copyright reason, just like video cameras at the movies.
If that is the case the policy is just too simple and B&N probably thinks the risk/cost/benefit analysis works in their favour over all.

Re: No photo policy could just covers too much

Could be worried about display "theft"?

I had heard one time so I don't know if it is true, that a lot of stores forbid photography on the notion that competitors may take photographs to copy their layout, displays, etc. They may be using copyright as a cover excuse.

Whatever the excuse, it is a bad one because you can easily sneak pictures so a competitor can still do it. So just like with DRM, the policy only hurts the consumer and ultimately the store/label/movie studio/publisher/insert digital content producer here.

The "FEAR" Mentality

We live in a society where the a supposed "law' is mindlessly regurgitated by someone for the purpose of oppressive manipulation. We have taken pictures of appliances in our home and in the store for purposes of comparison. Taking pictures, is a lot better than relying on memory.

As to the "private property" issue. The proprietor is making their business OPEN to the public. As such, the proprietor can not assume police powers or punishment over legitimate customers. It is fair use to take pictures.

Liability

I think the actual reason is that Borders knows that publishers are totally anal about copyright. So, if a customer snaps a picture in their store of a book display, and posts it online, the publisher could freak out and sue Borders for "contributing" to copyright infringement. Even if it's a bogus lawsuit, Borders loses.

From Borders' perspective, it's better to chill that speech than face a lawsuit.

Why bother with copyright?

Correct me if I'm wrong, but can't a store just set a "no photography" policy, and not bother bringing copyright into it? I'm not claiming this necessarily makes sense, but they do own the store location. Seems like they're allowed to set the rules of conduct while you are on their property.

Again, I wouldn't see much sense with such a policy, but it would seem like a much easier way for them to handle the situation.

Re:

Its possible that B&N sells prominent display spaces to vendors and/or has to pay for such displays themselves since it could, ostensibly, drive traffic to their stores.

I worked at a record store, and to get an endcap, generally the label had to reimburse the store (either directly or through some sort of product price reduction).

I've never heard of anything like this. I mean, you could be asked to stop if you used a flash, but that was because you would be disturbing other customers. Then again, the only people I ever saw take a picture of an endcap were label reps.

Re: B&N has to enforce copyright *somewhere*

Maybe they don't want us to find better deals

Can this be partly because people find better deals online by searching for books by taking pictures of their covers? Not that this can stop people from typing in the names. I have done that numerous times. If I am not planning to read the book right away, I usually use google goggles to search for a better deal online and get it from amazon, many times in about half the price.

Re: Could be worried about display "theft"?

When I worked retail well before all this copyright BS blew up, we had a company policy of not allowing pictures of our displays, and the reason is so competitors could not come in and photograph our displays. The reasons may may childish and stupid, but it was a documented corporate policy.

More than likely, the typical scenario of, an employee is told pictures are not allowed, never told why, so they fill in the blanks themselves. I've worked in enough companies to know that even unrelated parties will back a stupid claim, thinking it looks better for the company.

Re: Why bother with copyright?

"can't a store just set a "no photography" policy,". Implementing a "no photography" policy is virtually unenforceable given today's technology. I suppose every store could hire off duty TSA agents to grope each customer for a micro-miniature camera.

Another commenter threw out the "competitive" angle. Again an unenforceable policy. Once something is out on display, it is public knowledge. People do have memories, maybe not as good as a camera, but good enough. I suppose every store could institute a background check before someone enters the store to see if the "customer" is really a corporate spy for a competitor.

The extent to which people toss-out the "law" today as giving them a "right" to intimidate people and deprive them of their civil liberties is absurd.

Re: Could be worried about display "theft"?

Hit the nail on the head. This just pisses off customers who, when the company in question does something like this, will say "Okay, then I just won't come here and use your services again! NYAH!" which they have the right to do!

Re: Could be worried about display "theft"?

This is also silly considering the state of book store competition... Who is B&N's competition?
Amazon doesn't do floor displays...
Local small shops? Maybe, but they aren't big enough to really care about.
Maybe there are other chains, but around here B&N is the only option.

Ironically, one of the brick and mortar B&N stores biggest competitors is the nook. Why go to the store when you can shop from home.

Ironically ...

I'm not buying the argument about competitors stealing layouts and whatnot. Like they can't just look at them and remember? Who cares anyway? They should focus more on good customer service and competitive pricing. If they're worrying about anything else, they are wasting their time.

Just for fun, I'm going to swing by B&N on my way home from work and see how many pictures I can take before someone says something. If there is an altercation, I will get it on video... I'm sure it'll be quite entertaining.

Re: Re: Could be worried about display "theft"?

Hit the nail on the head. This just pisses off customers who, when the company in question does something like this, will say "Okay, then I just won't come here and use your services again! NYAH!" which they have the right to do!

Yeah but this way they can blame someone else. "Copyright infringement lost us a customer and we lost gazillions in potential books sales because they infringed our copyright."

Oooo *ping!* Lightbulb moment! That's how all those lost sale stats are made up!"

Re: Re: Re: Re: No photo policy could just covers too much

There's gotta be a (Some-moron's-name-here-) -"law" about this, no?

So, what's this idiocy to be called? Hasn't someone put his name on the operative stupidity involved in the instance described? So-and-so's "Law of Chain-Store-Clerk Stupidity" in which, if there's some damn-fool legal bureaucratic nonsense, somewhere, an ill-informed chain-store clerk will attempt to invoke it in the name of a principle which the clerk just doesn't understand.

it's a privacy and quality of life issue. b&n doesn't want to disturb other customers. imagine the person taking the photo was a creep pretending to take photos of books but actually photographing other people. the employee who said it was a copyright issue was wrong.

"Do Not Disturb" ?

So, by that logic, if no other customers are present, the photography would be allowed, wouldn't it?

Wikipedia's notes:

"rationalization"

..."a defense mechanism in which perceived controversial behaviors or feelings are explained in a rational or logical manner to avoid the true explanation, to differentiate from the original deterministic explanation, of the behavior or feeling in question."

So it seems that everyone agrees that copyright is not the real issue. Fear of competition seems plausible, but given today's market it's pretty thin. With Borders closing one could ask "what competition?"

As has been pointed out a 'No photography' is understandable and completely within their right as a private company. B&N doesn't even have to give a reason, and for every argument against such a policy there is an equally valid argument for it.

For example, my phone has an app on it to scan barcodes. It then looks them up and finds the best deal online, which at B&N usually mean Amazon. I can go directly from the app to Amazon on my phone and buy the book right there. By doing this I am using B&N in a way that is contrary to their maintaining a successful retail business model. I don't get the instant gratification of being able to go home and read the book right away, but who does that anyways. Also, with Amazon Prime I get the book two days later anyways, which is close enough to instant gratification for me.

I wouldn't be able to do this if my phone did not have a camera and B&N did not allow me to do it. Of course, if the store manager knew that I was doing this, they would probably ask me to leave and never come back. The only thing that currently holds me back is the somewhat sleazy feeling I get when I do it. I still spend over a hundred dollars at the store every month (family of 5 rabid readers), so the sleaze washes off easily.

Hmmm...

Re: Re:

There are apps out that allow you to photograph a book's barcode, and it will find other places (online or IRL) that have it cheaper. I suspect that is what's driving this policy. (Here's the first one I found with a quick google search, but there are others.)

It's a shame, b/c I usually snap pix of books that look interesting so I can come back and buy them when I have ready money.

Sometimes Pictures are OK

I was in a B&N to get an autograph from a Weird Al Yankovic book signing 2 months ago. A store employee offered to take the photo, which I declined, and there were books in the background. Now there's a scandal.

Slightly unrelated, but I was in a Barnes & Noble yesterday with my daughter (getting workbooks, which for some great reason my kids crave,) and there was a woman arguing with the sales checkout woman about a groupon not working. There was about 5 of us in line for ~10 minutes. We had to bail to do other stuff, but I imagine Groupon just cost that store quite a few bucks given the other people that left before me.

There were two sales clerks at a "Nook" sales kiosk, of course they couldn't leave that area to help her out...

Re:

It's a bummer in the US since the your copyright act is not clear what the exceptions to copyright are. Thats Fair Use for you. In the UK we have fair dealing and the exceptions to copyright are clearly stated in law. The B&N situation would not be an infringement of copyright. Each of the book covers would be an incidental inclusion in the photo of the display. My way to deal with this in the UK would be to tell them the parts of the act that related to the situation (I am not a lawyer)

Lots of furniture stores 'ban' photography of their displays... consequently when I'm shopping around for furniture I take pictures of the items I like to help me remember where it was and what I liked about it.

If any store employee tells me no to do this, I immediately reply that they have made my decision for me, and I will be buying something else from someone else. They can make the decision on their end, I get to make one on my end... and I'm not shy of pointing out why.

Re: No photo policy could just covers too much

Clusters of things which may or may not be registered w/ some copyright agency or another have appeared either accidentally or deliberately in the background of more than a few photos over the years. Shoppers cannot be subjected to an ad hoc store "policy" which may or may not be in conflict with local or federal laws. Maybe in some RandPaulWorld, stores can come up w/ arbitrary "rules" and "policies" (like racial discrimination), and maybe some people will follow those erroneous & illegal dictations, but eventually these culprits are exposed.

Re: No photo policy could just covers too much

Clusters of things which may or may not be registered w/ some copyright agency or another have appeared either accidentally or deliberately in the background of more than a few photos over the years. Shoppers cannot be subjected to an ad hoc store "policy" which may or may not be in conflict with local or federal laws. Maybe in some RandPaulWorld, stores can come up w/ arbitrary "rules" and "policies" (like racial discrimination), and maybe some people will follow those erroneous & illegal dictations, but eventually these culprits are exposed.

There are many legitimate reasons why no photos are allowed in the store.
1) google barnes noble upskirts. A lot of these stores have stairs and escalators that creeps like to hang around.
2) competitors often do go and steal merchandising ideas from other stores. If your job depended on coming up without new ideas would you risk leaving it to your memory?
3) last year a customer posted Obama as hitler posters all over a barnes and noble and took photos and posted them online.
4) security reasons ( people recording cash register routines)

B&N Vlogging

I was shooting a video of myself in B&N recently. I had an employee give me a hassle about it. Once I told him I was recording *myself* it seemed to take the wind out of his sails. I fail to see how a video of *book covers* is going to violate any form of copyright. But than I am not an American corporation nor it's faithful droogs.

Re: There's gotta be a (Some-moron's-name-here-) -"law" about this, no?

And when that happens, you're shit out of luck. You can't always have everything you want just the way you want it. It's called life. Get used to it.

The store has every right to make this stupid policy. It's dumb and bad for business, but they can do it if they want to, and if you don't like it, and you don't have another book store to shop at, well, then it sucks to be you, I guess. You're just going to have to live with your frustration.

fear of competitors

They are afraid that a competitor will steal their layout ideas. The Copyright is a BS issue as it's fair use and you're not violating Copyright until you publish as your own. They do not have the right to stop you from taking photos (unless posted at entrance) but they do have the right to ask you to leave their store. I've been kicked out of K-Mart (really? Who's gonna steal ideas from K-Mart unless it's to see what NOT to do) for shooting packaging I designed on their shelves and a favorite restaurant that I took my mother to that I wanted to redesign their Menu for a school project (which I have never eaten at again since). They used to stop you from taking pics or bringing cameras at concerts but have since given up as cameras are everywhere. I've decided that the best thing is to just do it and not ask permission, it's easier to ask forgiveness. Besides, they don't ask before taking your picture in the store, but if they publish it, then you can sue them...

Just visited the B&N at my college

I merely wanted to take a photo of a school hoodie I liked and to send to my fiancé. After taking a photo of the front print and starting to take a picture on the back. The rude, condescending employee at the time made it very clear to make me feel like a criminal for wanting to take a photo of an item of clothing.

I will not purchase it now seeing how I was treated and probably won't go back until it's time to return my books. I refuse to be treated like scum. Especially because I want to represent my school in a positive way.

Bad Store Workers!

The creepy lady at the Store in the Palisades Mall in West Nyack made me feel bad when I tried to take a picture of the cover of a lego box. I will not ever go back there when she said the reason for telling me to stop was that I could be taking pictures of other shoppers.. Seriously??

Had this experience today at B&N in Boston. Saw ridiculous-looking books written by Rush Limbaugh, wanted to snap a pic to text to my mom for a laugh. A second before I snapped the shot a big fat ugly store employee happens to be walking by and says "We don't allow photographs to be taken inside the store" and I immediately apologized and put my phone away but was baffled by what I had been told and by the rude manner in which the woman said it. And I thought their security around the music and DVD section was bad - its entrance is marked by those tall anti-theft devices (the things that beep if you walk through them with unpaid merchandise) as well as a security guard standing guard.